Trial of Madame Restell, alias Ann Lohman, for abortion and causing the death of Mrs. Purdy : being a full account of all the proceedings on the trial, together with the suppressed evidence and editorial remarks.
- Madame Restell
- Date:
- 1841
Licence: Public Domain Mark
Credit: Trial of Madame Restell, alias Ann Lohman, for abortion and causing the death of Mrs. Purdy : being a full account of all the proceedings on the trial, together with the suppressed evidence and editorial remarks. Source: Wellcome Collection.
Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)
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![Russell also adopts the .same principles, and says, Although there is nothing in these statutes, Philip and Mary, and 7ih Geo; ■■1th. providing that the depositions taken under them shall, in any case, be evidence, yet from the construction of the two former by the highest authorities, and upon general principles of evidence, it may now be considered as a settled rule, that if it be proved that the witness is dead, or insane, &C, his deposition may be given in evidence on the trial, &c, provided the deposition be taken in presence of the prisoner, &c, [2d Russ 659.] Mr. Starkie, in a note to the case of Rex vs. Smith 2d Stark. 211, adopts the same principle. [1 Hales, P.'C 305 ; I Ph. Ev. 351.] It is laid down as a general principle of evidence, that to ren- der a deposition of any kind admissible against a party, it must appear to have been taken on oath in a judicial proceeding, ami that the party should have an opportunity to cross-examine. [2 Russ 660, and authors there cited.] The deposition must betaken conformably to the statute, other- wise it would be extra-judicial. [Rex vs. Smith, Eng. C. L. Rep. 3, 318.] The cases that 1 have cited all go to establish the principle, that the reading of the trial oa depositions taken in the presence of the prisoner, with the right of cross-examination, and the wit- ness subsequently deceased is a common law principle, as neither of the statutes of Philip and Mary, or of 7th Geo. 4th, confer this power. I have shown that the provisions of our statute are similar to those of the English statutes, and the next question is, Have we adopted those principles of the Common Law? By the 13th section of the 7th article of the Constitution of this State, such parts of the Common Law as are not repugnant to the Constitution or laws of this Slate, were fully adopted, and are in full force here. [4 Page 498 ; 5th do. 233.] But it is said that the deposition was not drawn in the presence of the accused, but merely read to the witness in her presence, having been previously prepared. This would seem to be suffi- cient. A similar case is referred to by Russell on C. 2 vol. p. 661, when the deposition was principally reduced to writing m the absence of the prisoner, and the question was submitted to the twelve judges and held sufficient. The same principle has been sanctioned in our own courts. [8 W. 595, 99,15 ; do. 419, 21.] It is also objected, that a caption to be, deposition having been added (entitling as of the General Sessions) constitutes such an alteration as will vitiate the deposition, and render it inadmissible as evidence. The addition of this caption neither enlarges or diminishes the substance of the deposiiion ; and if the principle is correct, which appears to be w'ell sustained by authority, that a deposition taken upon a charge of an assault and battery may be read in evidence on a trial for murder by the same party, it would appear that the entitling a paper improperly could not produce the supposed consequence. [See 2 Russ. on C. 662, and authors there cited. It i. averred that the Magistrate was neglectf.il of his duty in omitting to annex to the deposiiion the questions put by the accu.](https://iiif.wellcomecollection.org/image/b21150096_0020.jp2/full/800%2C/0/default.jpg)
